Local 12, Plumbers

National Labor Relations Board - Board Decisions

Dec 6, 1974

215 N.L.R.B. 363 (N.L.R.B. 1974)

LOCAL 12, PLUMBERS
Local Union No . 12 of the United Association of Plum-
bers and Gas Fitters ' and J . F. White Contracting
Co., Heavy Construction Division2 and Local 22,
Laborers International Union of North America.'
Case 1-CD-390
December 6, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Labor Relations Division of Construc-
tion Industries of Massachusetts, Inc. (the collective-
bargaining association representative of the Employer),
alleging that the Plumbers violated Section 8(b)(4)(D)
of the Act by engaging in certain proscribed conduct
with an object of forcing or requiring the Employer to
assign certain work to its members rather than to the
Employer's employees represented by the Laborers.
A hearing was held before Hearing Officer Robert C.
Rosemere on March 25 and April 4, 8, 15, and 29,
1974. The parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. Thereafter, all parties filed briefs and
the Plumbers requested oral argument before the
Board.' °
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby
affirmed.'
Upon the entire record in this proceeding, the Board
makes the following findings:
I Herein called the Plumbers
2 Herein called the Employer
3 Herein called the Laborers
4 Since it appears that the record and the briefs adequately present the
positions of the parties the request is hereby denied
5 Plumbers appealed the Hearing Officer's ruling revoking its subpoena
duces tecum served on Employer for production of voluminous information
through which Plumbers sought to attack validity of Employer's divisional
components (Building Division and Heavy Construction Division)
Plumbers also appealed the Hearing Officer's refusal to hear testimony
from William Cour of National Joint Board for Settlement of Jurisdictional
Disputes and from Charles Appley, MBTA engineer
The Hearing Officer ruled that the above information was immaterial in
view of Laborers withdrawal from any jurisdictional disputes plan before the
eruption of the dispute in issue before the National Labor Relations Board
The Board, by teletype order dated May 29, 1974, denied the Plumbers
appeal
I THE BUSINESS OF THE'EMPLOYER
363
The parties stipulated, and we find, that the Em-
ployer is a Massachusetts corporation with its principal
place of business in Newton, Massachusetts. It is en-
gaged • in the construction industry and annually re-
ceives in Massachusetts directly' from points outside
Massachusetts materials having a value exceeding
$50,000. The site of the current dispute is the
MBTA (Massachusetts Bay Transportation Au-
thority) project at Wellington Circle in Medford,
Massachusetts, valued at or about $16 million.
The parties 'stipulated, and we find, that the Em-
ployer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that
it will effectuate the policies of the Act to assert juris-
diction in this proceeding.
II THE LABOR ORGANIZATION INVOLVED
There is no issue as to the status of the Plumbers and
Laborers, which we find to be labor organizations
within the meaning of Section 2(5) of the Act.
III THE DISPUTE
A. Background and Facts of the Dispute
J. F. White Contracting Company was founded in
1924 as a heavy and highway contractor . It engaged in
limited building construction from 1957 to 1967, when
its building operations were terminated . At all times,
however, it continued operation as a heavy and high-
way contractor and negotiated all of its labor agree-
ments through its association , the Massachusetts Labor
Relations Division of the New England Road Builders
Association , the predecessor in interest to the Labor
Relations Division of Construction Industries of Mas-
sachusetts . Its labor agreement with the Laborers Un-
ion covering this type of disputed work does not pro-
vide the National Joint Board submission. It has no
contract with the other Union , the Plumbers. The
Plumbers claims that the Employer is bound to the
Joint Board based on its alleged membership in As-
sociated General Contractors , herein AGC. However,
White 's AGC membership indicates there is no basis
for the Plumbers position . As noted above, White has
always been a heavy and highway construction con-
tractor and has belonged to a multiemployer associa-
tion , other than AGC, representing the heavy and high-
way construction industry . Its association has not
stipulated to any of the Joint Board procedures. When
the Employer activated a building division within its
company and started to engage in "building and con-
struction ," it applied to the association in Massa-
chusetts which represented building construction con-
tractors , the Associated General Contractors of
215 NLRB No. 64
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Massachusetts. At the same time, it hired a vice presi-
dent for building affairs, Donald Mascone, who had
been previously employed by another building contrac-
tor. It also hired a group of supervisory personnel for-
merly employed by building contractors in order to
form the nucleus of a building division of J. F. White.
Its application for membership in AGC was limited to
its "building division." The notices of this application
that were sent by AGC to its membership chairman
and to its entire membership listed only the "Building
Division of J. F. White." The AGC board of directors
voted "to accept the application of J. F. White Con-
tracting Company, Building Division" for membership
and the AGC certificate of membership for J. F. White
is for only the "Building Division." The notices which
were sent to all AGC members clearly stated that the
membership was voted to the White Building Division
only. This limited membership is not unique to J. F.
White; other national contractors have also limited
their membership. AGC of Massachusetts negotiated
an agreement covering building work with the Labor-
ers Union containing a stipulation to the "new" Joint
Board upon its acceptance by the AGC of America.
Pursuant to that agreement, AGC of Massachusetts
notified its members that it would stipulate all its mem-
bers to the Joint Board unless the members individually
withdrew authority from AGC to so stipulate. J. F.
White was one of the contractors which specifically
advised AGC not to stipulate it to the Joint Board.
When pressed on this point at an AGC labor policy
committee meeting, the White vice president stated the
purpose for this refusal to authorize was to avoid being
bound to the Joint Board in its Laborers-Plumbers dis-
putes which had occurred. The chairman of the AGC
labor committee advised the White representative that
this would not be a problem as the stipulation would
be binding only on the White Building Division and the
disputed work in question was never performed by
White Building Division. Based on this assurance,
White authorized AGC to stipulate the Building Divi-
sion only of White to the Joint Board. At the present
hearing, the AGC of Massachusetts representative ac-
knowledged that AGC was without authority to stipu-
late any aspect of the Employer's operation to the Joint
Board other than J. F. White Building Division.
There appears to be an "agreed-upon method for the
voluntary adjustment of the dispute" only if the work
is being performed by White's Building Division sc as
to be covered by the AGC agreement and its Joint
Board stipulation. Under the practice adopted by the
Employer, it determines if a particular job is "heavy
and highway" or "building" prior to bidding that job.
Once that initial determination is made, the entire pro-
ject is performed by the particular division of White
having jurisdiction over the job. Concerning the project
involved in this dispute, the "site excavation" aspect of
the job was determined to be "heavy" construction.
The bids on that portion were prepared by the Heavy
Construction supervisory personnel. The jobsite super-
intendent for that aspect of the job was a Heavy Con-
struction employee and the work itself was performed
by employees of the Heavy Construction Division of
White. The president of the Employer testified there
was little, if any, employee interchange among the
Heavy and the Building Divisions, either at the supervi-
sory or at the rank-and-file level. The disputed work
was performed under the "Heavy and Highway" agree-
ment with the Laborers.
In early July 1973, the business agent of the Plum-
bers inquired of the president of J.F. White and super-
intendent of the jobsite as to whether plumbers would
be assigned the work in question. Being informed that
the assignment would be made to laborers, the Plum-
bers agent attempted to negotiate a settlement with the
Laborers, until October 1973, when the assignment to
laborers became final. On November 2, 1973, the Plum-
bers submitted the dispute to the Boston board for the
settlement of jurisdictional disputes. After a hearing
before that Boston board, at which both the Laborers
and Plumbers participated, the local board awarded the
work in question to plumbers. The Employer, claiming
to be divided into a Building Division and a Heavy and
Highway Division, asserted that only its Building Divi-
sion was bound by the local board determination and
that the work in question was that of the Heavy and
Highway Division, and, accordingly, ignored the local
board's assignment to plumbers. On November 14,
1973, the Laborers withdrew from the Boston Building
Trades Council, through which it was bound to the
local board for the settlement of jurisdictional disputes,
and laborers continued to perform the work. As noted,
the Employer refused to accept the local board's deter-
mination and commenced the work in question in Feb-
ruary 1974, with laborers performing the work. On
February 26, 1974, the Plumbers agent visited the job,
looked at the disputed work being performed, and re-
turned to the job the following morning with pickets.
The purpose of the pickets was to protest the White
assignment of the disputed work to laborers. As a result
of the picketing the job was shut down for several days.
On February 27, 1974, the charge against the Plumbers
was filed.
B. The Work in Dispute
The work in dispute is the unloading, distribution,
and installation of lateral sanitary sewer and on-site
water pipe at the MBTA Massachusetts Bay Transpor-
tation Authority) project at Wellington Circle in Med-
ford, Massachusetts.
LOCAL 12, PLUMBERS 365
C. Contentions of the Parties
The Plumbers, through its agreements with plumb-
ing contractors , is bound by the Associated General
Contractors of Massachusetts , Inc., and has agreed to
be bound by the national local plans for the settlement
of jurisdictional disputes . The Plumbers contends that
because the Laborers was bound by the national and
local jurisdictional dispute settlement plans at the time
of the work assignment and original hearing before the
local board , then the Laborers is bound to such plans.
Accordingly , since the local board awarded the work in
dispute to the Plumbers , plumbers are entitled to per-
form the work.
The Laborers contends that because Laborers Local
22 had withdrawn from membership in the Boston
Building and Construction Trades Council, and conse-
quently from the Boston Local Joint Board, prior to the
time the current dispute arose , the Laborers therefore
had not agreed to any alternate method of settling the
dispute . Laborers contends that it has not agreed to be
bound by any plan for settlement of jurisdictional dis-
putes that covers the dispute in issue herein . Laborers
has agreed to be bound by the "new" national plan
where employers with whom it has contracts have
agreed to be bound . It does not agree to be bound by
the local plan. Laborers has agreed with Associated
General Contractors of Massachusetts , Inc., to submit
jurisdictional disputes to the national board where em-
ployer signatories to Associated General Contractors
of Massachusetts , Inc., have stipulated to be bound.
This , however , pertains to the Building Agreement. La-
borers does not agree to submit disputes under the
Heavy and Highway Agreement to the national board.
James V . Merloni , president , Massachusetts Laborers
District Council , stated that as a result of the Laborers
withdrawal in the fall of 1973 from the Boston Local
Joint Board for the Settlement of Jurisdictional Dis-
putes, it is not bound by the national plan.
The Employer contends that its Heavy Construction
Division is a signatory to an agreement between the
Massachusetts Labor Relations Division of New Eng-
land Road Builders Association' and the Laborers
which covers the disputed work. The Plumbers in not
bound by any agreement with this association. The
Employer's position on the decision of the Boston Joint
Board is that under N. L.R.B. v . Plasterers ' Local Union
No. 79, Operative Plasterers' & Cement Masons ' Inter-
national Assn., AFL- CIO, et al., 404 U. S. 116 (1971),
it was not a party to the Joint Board stipulations either
locally or nationally , and is therefore not bound by the
Joint Board determinations.
The Employer and Laborers contend the disputed
work belongs to laborers on the basis of contract, the
Employer's and area practice, efficiency, safety, and
skill.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated and that there is
no agreed-upon method for the voluntary adjustment
of the dispute.
The record establishes that there is no agreed-upon
method for settling the dispute. The record also shows
that on February 26, 1974, the Plumbers agent visited
the job and saw the disputed work being performed by
laborers. He returned to the job the following morning
with pickets. The purpose of the pickets was to protest
the Employer's assignment of the disputed work to
laborers. As a result of the picketing the job was shut
down for several days.
In view of the foregoing, we find that there is reason-
able cause to believe that there has been a violation of
Section 8(b)(4)(D) of the Act, and that the dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors involved. The
following are relevant in making a determination of the
dispute before us:'
1. Certifications and collective-bargaining agreements
There is no evidence that either of the labor organi-
zations involved herein has been certified by the Board
as the collective-bargaining representative for a unit of
the Employer's employees.
The Employer's Heavy Construction Division is a
signatory to an agreement between the Massachusetts
Labor Relatios Division of New England Road Build-
ers Association (Labor Relations Division of the Con-
struction Industries of Massachusetts) and the Labor-
ers. The Plumbers is not bound by any agreement with
this association. The collective-bargaining factor tends
to support the award to laborers as the Employer had
no agreement with the Plumbers and its agreement
with the Laborers expressly covers the work in ques-
tion.
6 Now called Labor Relations Division of the Construction Industries of
Massachusetts
7 International Association of Machinists , Lodge No. 1743, AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402, 1410 (1962)
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. 2. Company and industry practices
The Employer has always assigned this work to la-
borers and has never assigned it to plumbers. The one
isolated instance where the Plumbers claims the Em-
ployer made such an assignment to plumbers involved
the placing of a single plumber in with the crew of
laborers as a means of avoiding a possible labor dispute
some 10 years ago. The actual work on that job was
performed by laborers. Several years ago an almost
exactly similar project was performed for Massa-
chusetts Bay Transit Authority south of Boston. On
that job, the Employer assigned the unloading, distri-
bution, and installation of lateral sanitary sewers and
pipe work to its employees represented by the Laborers.
Similar work was assigned to laborers in the Em-
ployer's construction of the Foxboro professional foot-
ball stadium about 35 miles southwest of Boston. Ac-
cordingly, the Employer's assignment of the work, and
its past practice favors the assignment to the laborers.
The evidence of area practice shows that, when gen-
eral contractors perform the type of work in dispute on
projects of substantial magnitude, they use laborers;
and, when plumbing subcontractors perform such
work, they use plumbers for the actual pipe installation,
but trench excavation and leveling is performed by
others. The area practice tends to favor the assignment
of work to the laborers.
3. Efficiency of operations , economy, and relative
skills
The pipes are unloaded adjacent to the trench exca-
vation area. The trench surface is excavated either by
a laborer with a jackhammer or by an operating engi-
neer with a backhoe. The laborer will then shore the
trench, and smooth the bottom of the trench with a
shovel or similar tool. The pipe is then either hand-
lifted into the trench or hoisted down to the trench with
a cherry picker or similar small hoist. The pipes are
then coupled, and the laborer removes the trench shor-
ing and assists in backfilling the trench. The laborer
then operates a tamping device to smooth the backfill-
ing. this operation is done in single stretches of
10-30 feet depending on the size of the pipe and the
type of earth material encountered. The only work
claimed by the Plumbers is the unloading and coupling
of the pipe. All the other work is admittedly that of
laborers.
It would be inefficient to have to employ two crews
to perform this work which can be done more effi-
ciently by one crew. As the plumber's crew would not
perform the jackhammer work, the shoring, the shovel-
ing, the leveling, the backfilling, or the tamping neces-
sary to this operation, the efficiency and economy of
the operation would favor the assignment to laborers.
The Employer consistently uses laborers for the type
of work in dispute. The present crew, consisting of a
foreman and four laborers, excavates the trenches,
shores it, levels it, lays the pipe, and then backfills.
There is no pipe threading, no flanging, no welding, no
soldering. A plumber's license is not required to per-
form the pipe work in dispute; and, unlike plumbing
work in the building, no plumbing inspection is re-
quired for the site. The Plumbers apprentice program
(5 years) does not encompass the type of work in dis-
pute. Plumbers no doubt possess the skill for handling
and coupling the pipes, but the skills which serve as the
basis for the plumbers' substantially higher wage rate
are not performed in this operation, and plumbers do
not perform all the tasks necessary for the operation.
As laborers have all the skill necessary and do perform
all of the tasks necessary for this operation, the assign-
ment of the work favors laborers.
Conclusion
Upon the entire record, after full consideration of all
relevant factors here involved, we believe that the work
in dispute should be awarded to employees represented
by the Laborers. The fact that the Employer' s assign-
ment conforms to the contract and to its own and area
practice, the fact that the laborers employed by the
Employer not only have the requisite skills but are
familiar with all facets of the work, and the attendant
efficiency and concurrent economics of utilizing the
services of laborers for all the tasks necessary for the
on-site work, lead us to conclude that the Employer's
assignment of work to laborers is a proper one. There-
fore, we shall assign the work in question to employees
of the Employer who are represented by the Laborers.
In making this determination, which is limited to the
controversy that gives rise to this proceeding, we are
not assigning the work to the Laborers or its members.
Scope of Award
The Employer requests an areawide award on all of
its projects, contending that such award is necessary
because of the likelihood that the dispute will occur on
further construction jobs on which it is involved.
However, we do not find the record evidence herein
sufficient to establish a pattern of misconduct sugges-
tive of a likelihood that this dispute will extend to other
jobsites or recur in the future. Accordingly, we do not
believe that the broad order requested by the Employer
is appropriate at this time and, therefore, the determi-
nation herein shall apply to the project presently under
consideration.
LOCAL 12, PLUMBERS 367
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Bord
hereby makes the following Determination of Dis-
pute:
1. Employees of J. F. White Contracting Co.,
Heavy Construction Division, who are represented
by Local 22, Laborers International Union of
North America, are entitled to perform the work of
unloading, distribution, and installation of lateral
sanitary sewer and on-site water pipe at the MBTA
project at Wellington Circle, in Medford, Massa-
chusetts.
2. Local Union No. 12 of the United Association
of Plumbers and Gas Fitters is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force or require the Employer, J. F. White Con-
tracting Co., Heavy Construction Division, to as-
sign the above work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No. 12
of the United Association of Plumbers and Gas
Fitters shall notify the Regional Director for Re-
gion 1 , in writing , whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to as-
sign the work in dispute to employees represented
by it rather than to employees represented by Local
22, Laborers International Union of North Ameri-
ca.